Citation Nr: 0839250
Decision Date: 11/14/08 Archive Date: 11/20/08
DOCKET NO. 07-05 057 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to an effective date earlier than March 22, 2006
for the award of service connection for tinnitus.
ATTORNEY FOR THE BOARD
Tanya A. Smith, Counsel
INTRODUCTION
The veteran had active service from July 1964 to July 1968
and October 1971 to March 1988.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a July 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia.
FINDING OF FACT
An informal claim of entitlement to service connection for
tinnitus was communicated and reduced to writing on March 22,
2006; a written claim, construed as a formal claim, for
service connection for tinnitus was thereafter received on
March 29, 2006.
CONCLUSION OF LAW
The criteria for an effective date earlier than March 22,
2006 for the award of service connection for tinnitus have
not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38
C.F.R. §§ 3.151, 3.155 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 & Supp. 2008)) redefined VA's duty to assist a
claimant in the development of a claim. VA regulations for
the implementation of the VCAA were codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).
The notice requirements of the VCAA require VA to notify the
claimant of what information or evidence is necessary to
substantiate the claim; what subset of the necessary
information or evidence, if any, the claimant is to provide;
and what subset of the necessary information or evidence, if
any, the VA will attempt to obtain. Sanders v. Nicholson,
487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all
five elements of a service connection claim: veteran status,
existence of a disability, a connection between the veteran's
service and the disability, degree of disability, and
effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Such notice must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO). Id.; see also Pelegrini
v. Principi, 18 Vet. App. 112 (2004). However, insufficiency
in the timing or content of VCAA notice is harmless if the
errors are not prejudicial to the claimant. Conway v.
Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice
errors are reviewed under a prejudicial error rule); see also
Sanders, supra.
In this case, in a May 2006 letter, issued prior to the
decision on appeal, the RO provided notice to the veteran
regarding what information and evidence is needed to
substantiate the claim for service connection, as well as
what information and evidence must be submitted by the
veteran and the types of evidence that will be obtained by
VA. The letter advised the veteran how effective dates are
assigned, and the type evidence which impacts that
determination.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file includes various
statements from the veteran. The veteran indicated that he
had no additional information or evidence to submit in
September 2008.
In any event, the veteran has disagreed with the effective
date assigned following the initial award of service
connection. In Dingess, the Court held that in cases in
which service connection has been granted and an initial
disability rating and effective date have been assigned, the
typical service connection claim has been more than
substantiated, it has been proven, thereby rendering section
5103(a) notice no longer required because the purpose that
the notice is intended to serve has been fulfilled. Dingess,
19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i),
73 FR 23353-56 (April 30, 2008). Thus, because the notice
that was provided before service connection was granted was
legally sufficient, VA's duty to notify in this case has been
satisfied.
As discussed above, the veteran was notified and aware of the
evidence needed to substantiate his claim, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence. The veteran was an active
participant in the claims process, setting forth his
contentions in several statements on why he believed he was
entitled to an earlier effective date for the award of
service connection for tinnitus. Thus, he has been provided
with a meaningful opportunity to participate in the claims
process and has done so. Any error in the sequence of events
or content of the notice is not shown to have any effect on
the case or to cause injury to the veteran. Therefore, any
such error is harmless and does not prohibit consideration of
this matter on the merits. See Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc.,
159 F.3d 534, 549 (Fed. Cir. 1998).
Analysis
The Board has reviewed all the evidence in the veteran's
claims file. Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the veteran or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate the claim and what the
evidence in the claims file shows, or fails to show, with
respect to the claim. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).
The effective date of an award of service connection will be
the day following discharge from service if the claim is
received within one year of the veteran's discharge from
service. Otherwise, the effective date will be the later of
the date of receipt of claim or the date entitlement arose.
38 U.S.C.A. § 5110 (West 2002 & Supp. 2008); 38 C.F.R. §
3.400 (2008).
A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid to any individual
under the laws administered by VA. 38 U.S.C.A. § 5101(a)
(West Supp. 2008); 38 C.F.R. § 3.151(a) (2008). The term
"claim" or "application" means a formal or informal
communication in writing requesting a determination of
entitlement or evidencing a belief in entitlement to a
benefit. 38 C.F.R. § 3.1(p) (2008).
Any communication or action, indicating an intent to apply
for one or more benefits under the laws administered by VA,
from a claimant, his or her duly authorized representative, a
Member of Congress, or some person acting as next friend of a
claimant who is not sui juris may be considered an informal
claim. Such informal claim must identify the benefit sought.
Upon receipt of an informal claim, if a formal claim has not
been filed, an application form will be forwarded to the
claimant for execution. If received within one year from the
date it was sent to the claimant, it will be considered filed
as of the date of receipt of the informal claim. 38 C.F.R. §
3.155(a) (2008).
The veteran contends that he is entitled to an effective date
of the date of his retirement in 1988 for the award of
service connection of tinnitus as during his November 1989 VA
examination, he was "claiming any and all know[n] and
unknown disabilities." He contends the July 2006 rating
decision and January 1990 rating decision contain clear and
unmistakable error (CUE). This matter comes before the Board
on appeal from the July 2006 rating decision, so it is not
final and subject to CUE notwithstanding the RO's
consideration of this issue in the August 2008 supplemental
statement of the case. See 38 C.F.R. §§ 3.104, 3.105, 19.25,
20.1103 (2008); see also Phillips v. Brown, 10 Vet. App. 25,
30-31 (1997) (citing Smith v. Brown, 35 F.3d 1516, 1527 (Fed.
Cir. 1994)) (providing that a CUE adjudication is "a
collateral attack on a previous and final RO decision which
seeks the revision, nunc pro tunc [with retroactive effect],
of that decision."). As for the January 1990 rating
decision, the issue of entitlement to service connection for
tinnitus was not addressed. The veteran has essentially
raised the argument that he had an unadjudicated claim for
service connection for tinnitus in 1988 or 1989 that is
either considered denied at that time or remains pending at
this time. See generally Norris v. West, 12 Vet. App. 413
(1999); Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005);
Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006); Ingram
v. Nicholson, 21 Vet. App. 232 (2007) (per curium).
On December 27, 1988, the RO received the veteran's original
claim for compensation benefits for disabilities that did not
include tinnitus. The veteran underwent a VA examination in
conjunction with his claim in November 1989. The audiology
report notes that the veteran complained of a continuous low
intensity ringing in both ears. In several statements dated
in 1989 and 1990, the veteran does not mention or claim
entitlement to service connection for tinnitus.
A Report of Contact notes that on March 22, 2006, the veteran
indicated that he wanted consideration of entitlement to
service connection for tinnitus. The veteran submitted an
informal written claim for service connection for tinnitus on
March 29, 2006. The veteran did not thereafter file a formal
claim in the form prescribed by VA, and the RO did not
forward such application form to the veteran for execution.
The RO ultimately assigned an effective date of March 22,
2006 for the award of service connection by construing the
March 22, 2006 communication (which was reduced to writing)
as an informal claim and the March 29, 2006 claim as a formal
one according to the January 2007 rating decision.
The Board is cognizant of the fact that the veteran
complained of ringing in his ears to the November 1989
audiologist, but there is no written communication from the
veteran at that time indicating an intent to apply for
compensation benefits for tinnitus. The receipt of clinical
reports of examination or hospitalization may only serve as
informal claims for increase or to reopen where the claim is
for an already service connected condition. 38 C.F.R.
§ 3.157 (2008). Thus, the November 1989 VA examination
report cannot constitute an informal claim where service
connection had not previously been established for tinnitus.
Given the above, as the veteran did not file a claim for
service-connected compensation for tinnitus prior to March
22, 2006, he has already been given the earliest possible
effective date for the award of service connection for
tinnitus. Thus, there is no legal basis for an effective
date earlier than March 22, 2006, for the award of service
connection. Accordingly, the claim must be denied as a
matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
ORDER
An effective date earlier than March 22, 2006 for the award
of service connection for tinnitus is denied.
____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs